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Monday, July 30, 2012

Phrase in federal assault statute, 18 U.S.C. § 113(a)(3), stating "without just cause or excuse," is an affirmative defense, rather than an element of the offense

In United States v. Taylor, No. 11-2875 (3d Cir. July 25, 2012), the Third Circuit was presented with the question of whether, by including the phrase "without just cause or excuse," in provision of the federal assault statute covering assault with a dangerous weapon, 18 U.S.C. § 113(a)(3), Congress intended to convert justification from an affirmative defense into an element of the offense for purposes of the statute. The Court ultimately held that the existence of just cause or excuse is an affirmative defense to a § 113(a)(3) violation which the defendant must prove by a preponderance of the evidence.

18 U.S.C. § 113(a)(3) provides, in pertinent part:

Whoever, within the special maritime and territorial jurisdiction of
the United States, is guilty of an assault shall be punished as
follows ... Assault with a dangerous weapon, with intent to do bodily
harm, and without just cause or excuse, by a fine under this title
or imprisonment for not more than ten years, or both.


Section 113(a) lists seven types of assault, but the phrase "without just cause or excuse" is only found in subsection (a)(3), assault with a dangerous weapon.

Although the Court found a dearth of case law on this point, it concluded that the existing case law, including two on-point Supreme Court cases, supported its conclusion that the statute's "without just cause or excuse" language sets forth an affirmative defense. The Court noted that the phrase "without just cause or excuse" appears in a distinct clause of the statute, set off by commas from the rest of the statute and sets forth an exception to the offense. Additionally, the existence of just cause or excuse does not disprove the elements of assault under § 113(a)(3), but provides a justification to the offense which the defendant bears the burden of proving. Accordingly, the Court concluded that the district court did not err in failing to charge "without just cause or excuse" as an element of the offense.

Friday, July 20, 2012

Unlicensed Distribution of Prescription Drugs Not an 'Aggravated Felony'

In Borrome v. Attorney General, No. 11-1975 (July 18, 2012), the Circuit applies the "categorical" approach used to assess the nature of prior convictions to hold that a federal conviction for the unlicensed wholesale distribution of prescription drugs is not an "aggravated felony."

The case reaches the Circuit by way of a removal proceeding instituted against a citizen of the Dominican Republic following his conviction under a federal indictment alleging the distribution of prescription drugs including Oxycontin. The term "aggravated felony" is defined by the Immigration and Nationality Act to include "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B). Under the categorical approach, "we must look only to the statutory definitions of the prior offenses, and may not consider other evidence concerning the defendant’s prior crimes, including the particular facts underlying a conviction" (alteration and quotation marks omitted).

The "case hinges," the Court explains, "on the relationship between prescription ‘drugs’ and ‘controlled substances.’" The statutory provisions criminalizing the unlicensed wholesale distribution of prescription drugs — 21 U.S.C. §§ 331(g) and 353(e)(2)(A) — do not define a form of "illicit trafficking in a controlled substance" because "while some prescription drugs contain chemicals that are also regulated as ‘controlled substances’ under the [Controlled Substances Act,. 21 U.S.C. § 801 et seq.], many do not." By the same token, the prior conviction was not for a "drug trafficking crime" under § 924(c)(2) because § 924(c)(2) defines "drug trafficking crime" to mean any felony punishable under the federal controlled substance laws.

In the course of its analysis, the Court states that it "is well established that the aggravated felony enumerating statute at issue here, [8 U.S.C. § 1101(a)(43)(B)], does not permit departure from the categorical approach nor does it invite inquiry into the underlying facts of conviction." Accordingly, the defendant’s guilty plea under an indictment alleging the wholesale distribution of Oxycontin — a prescription drug containing the controlled substance oxycodone — did not turn the conviction into an "aggravated felony."

Monday, July 16, 2012

Grant of Rule 29 Motion Based on Sufficiency Grounds and Issued After Jury’s Guilty Verdict Reversed

In United States v. Claxton, No. 11-2552 (July 9, 2012), the Third Circuit addressed an interesting issue of whether a rational fact-finder could conclude beyond a reasonable doubt that the Defendant knowingly participated in a drug trafficking organization.

Claxton was indicted with other individuals for participating in a drug-trafficking conspiracy, in violation of 21 U.S.C. § 846. The indictment alleged that the conspirators, including Claxton, sought to possess large quantities of cocaine in order to distribute that cocaine for “significant financial gain and profit”.

At the jury trial, after the Government rested its case, Claxton moved for a judgment of acquittal under Rule 29. The district court expressed concern about the sufficiency of the evidence introduced by the Government, but reserved judgment on the motion and submitted the case to the jury. The jury found Claxton guilty. Claxton then renewed his motion for judgment of acquittal, which was ultimately granted. The Government appealed.

The Third Circuit stated that a finding of guilt in a conspiracy case does not necessitate direct evidence and can be proven by circumstantial evidence. The Court then went through a factual discussion of Claxton’s interactions and found that he was identified at trial as a drug-trafficker by another co-conspirator; he repeatedly did the organization’s bidding; he was entrusted to transport large sums of money; he visited the place where the money was laundered; and he frequented the place where the drugs were stored and the meetings of the organization occurred. The Court reasoned that the totality of the circumstances strongly suggested that Claxton was aware of his role in the conspiracy and had the requisite knowledge requirement.

The Third Circuit noted that specific pieces of evidence tipped the scales in favor of inferring knowledge as opposed to other cases in which a judgment of acquittal was upheld. Specifically, the court stated that Claxton’s participation involved multiple transactions; it was based on his membership to a well-structured organization; and he was placed at the organizational headquarters on several occasions by eyewitness testimony of a fellow “member” of the organization.

The Third Circuit reviewed the trial record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence. It found that although a jury reviewing the testimony of the co-conspirator could have simply concluded that Claxton “kept bad company”, the verdict instead reflected that the jury found Claxton knew what he was involved in, and the Third Circuit was bound by that determination, so long as it was not irrational. The Court determined that the jury’s verdict was not irrational based on the totality of the circumstances. Unfortunately for Claxton, the case was remanded for him to be sentenced.

Wednesday, July 11, 2012

Circuit Invalidates Waiver of Counsel at Trial Because Court Misinformed Defendant re Maximum Penalty

       In United States v. Booker (3d Cir. 7/2/12), http://www.ca3.uscourts.gov/opinarch/072835p.pdf, the defendant represented himself at trial following an on-record colloquy in which the judge made a mistake on the sentencing range as to one count, telling the defendant he faced a minimum of five years instead of twenty-five. He also failed to advise the defendant that the maximum was life and that it must run consecutively with other counts. The panel (Greenaway for majority) finds that the waiver was structural error and requires reversal on all counts.

       Using language that may be of some use in attacking other uninformed waivers, the court holds that the waiver was invalid regardless of what effect the misinformation might have actually had on the defendant:


It is the District Court that bears the burden of ensuring that a defendant is acting voluntarily and with the appropriate knowledge before relinquishing his rights. Peppers, 302 F.3d at 130-31. Because we have been steadfast in requiring district courts to uphold this obligation, we see no reason to engage in an after-the-fact, subjective determination of what information did or did not influence Booker?s decision.
Although our resolution of this case is grounded in our jurisprudence regarding waiver of the right to counsel, we have also espoused similar notions regarding waiver in the guilty plea context. See Jamison v. Klem, 544 F.3d 266, 274, 276-77 (3d Cir. 2008). In Jamison v. Klem, we held that a guilty plea was not knowing and voluntary where the trial court failed to advise the defendant of the mandatory minimum that he would face as a result of pleading guilty. Because we found the waiver to be defective, we vitiated the guilty plea and granted the petitioner a writ of habeas corpus.
 

Claudia VanWyk
EDPA Capital Habeas Unit

Plain Error Rule Applies to Review of Honest Fraud Jury Instructions Administered Before Skilling; Extraordinary Circumstances Required Review of Waived Sentencing Claim




In United States v. Ashley Andrews, No 11-1239 (Third Circuit, June 4, 2012), The Defendant, Ashley Andrews, was a contractor whose company, GRM, could not get a government contract to repair Virgin Islands sewers without a Virgin Islands business license, which in turn required a “tax clearance” letter.  To get the tax clearance letter, Andrews listed one Ohanio Harris, a Special Assistant to the Governor of the Virgin Islands, as the president of GRM on the February, 2002 application for the license. Andrews had been president of GRM until January, 2002— he resumed that office in March, 2002.  In March, 2002, Harris and Andrews went to neighboring Tortola, where Harris introduced himself to an American engineering firm as the Governor’s special assistant, vouched for Andrews to the firm’s president, and told the firm he could get a meeting with the Governor of the VI to discuss awarding sewer construction work. Harris later testified that later that day Andrews gave him $2500 in cash for his services, which he used to pay his home mortgage. Also at this time, Harris held himself out as a liaison between GRM and Andrews and the VI Department of Public Works.  Harris arranged for Andrews to meet with the Governor, and later, Andrews asked Harris for help in getting the contract. Harris said he would do what he could, and Andrews promised him a job with GRM. Further machinations resulted in GRM getting a sole-sourced contract for the sewers.

            Consumation of the deal however was conditioned on GRM getting performance and payment bonds for 100% of the contract price. GRM’s accountant contacted a New York lawyer who in turn put GRM in touch with a company that faxed an emailed application and related paperwork to GRM.  The accountant emailed the completed paperwork back a days later. The completed application contained numerous false statements about Andrews’ personal and GRM’s corporate financial condition. Only the construction contract signed by the Governor was now required for the issuance of the bonds. Ultimately, the Governor of the Virgin Islands signed the contracts,  but before the bonds were issued, the United States, probably sensing something wrong, successfully sought to enjoin enforcement of the contract. (The sewer project itself was the result of a consent decree arising from a lawsuit by the United States against the Virgin Islands.)  Andrews then submitted a post-termination claim for roughly one-fourth of the contract price (about $750,000) for the time and resources GRM had expended pursuing the contract. Once again, Andrews’ paperwork contained numerous false claims.

            In 2004, Andrews, Harris and GRM's accountant were indicted. Harris pled guilty, while Andrews and GRM’s accountant went to trial. Following a mistrial, at the second trial Andrews was found guilty all charges: one count of conspiracy, in violation of 18 U.S.C. § 371, four counts of wire fraud, in violation of 18 U.S.C. §§ 1343, 1346, and 2, one count of program fraud, in violation of 18 U.S.C. §§ 666(a)(1)(B) and 2, one count of making a false claim upon the Government of the Virgin Islands, in violation of 14 V.I.C. § 843(4), and one count of inducing a conflict of interest, in violation of 3 V.I.C. §§ 1102, 1103, and 1107. He was sentenced to 151 months’ imprisonment on the first six counts, and two years’ imprisonment, to be served with the first sentence, on the last two counts. He appealed.

            Andrews chief claim revolved around the §1346 charges, which were the subject of last year's Supreme Court decision on honest services fraud in United States v. Skilling, 130 S.Ct. ____ (2010). Because Skilling was decided after the trial, and there was thus no opportunity to object to the jury instructions, the standard of review of the jury instructions was plain error. Under plain error review, the Court said, it “may correct an error not raised at trial only if the appellant demonstrates that: (1) there was an error; (2) the error is clear or obvious; and (3) “the error ‘affected the appellant’s substantial rights, which in the ordinary case means’ it ‘affected the outcome of the district court proceedings.’” (internal citation omitted). Slip op. at 11. Skilling met the standard for retroactive application: a case where a new rule constituted a clear break with the past. The Court concluded that even though the jury instructions were wrong under Skilling, they did not affect Andrews’ substantial rights, and did require reversal of his conviction.

            Skilling requires that juries considering honest services fraud be told the statute encompasses only fraudulent schemes to deprive another of honest services through bribes or kickbacks. It is legal error to not tell a jury of that limitation. 

            The Court’s first step in its plain error analysis was to determine whether the references to honest services fraud in the indictment and the jury instructions constituted Skilling error. The Government contended at trial that in addition to alleging bribes, Andrews schemed to defraud the VI of the honest services of Harris. However, before the jury was charged, all references to honest services in the wire fraud counts were removed, and that the jury charge reflected that change. Nevertheless, the court’s charge did contain references honest services fraud. A later narrowing instruction from the trial court did not cure the problem. Thus, the first prong of the plain error test was met. The Court then also concluded the second prong of the test was met: the error became apparent when the Supreme Court decided Skilling.        
     
            Andrews, however, could not surmount the third and last prong of the plain error test: he could not show that the error affected his substantial rights: Andrews could not demonstrate that the error was harmless, i.e., he could not show a reasonable probability that the error affected the trial. Even without the error, the Court concluded, Andrews would have been convicted of wire fraud: there was a clear alternative theory of guilt, supported by overwhelming evidence, that kept Andrews from showing that the conviction was the result of harmless error. In this case the Court found overwhelming evidence of bribes and falsehoods. The Court also noted that the jury was told to consider only the scheme to defraud that was charged in the indictment, which did not include honest services fraud. The Court concluded there was no reasonable probability that passing references to honest services fraud in the instructions, illegally or unfairly,  affected the jury’s verdict. Also, if the jury had been instructed that it could only find Andrews guilty of honest services fraud if it found the fraud bribery or kickbacks, it would have found him guilty of the wire fraud anyway.

            The Court also found the evidence sufficient to support the convictions. In particular, it swatted away Andrews' claim that he had no idea that his false statements would be transmitted by electronic means: that was something he could have reasonably and easily anticipated. 

            Andrews' one victory was one he did not seek: the government on its own raised the illegality of Andrews' sentence due to the lower court’s not imposing a separate sentence on each count. Even though Andrews waived this issue, “extraordinary circumstances” required consideration of the issue and remand for a new sentence, with instructions to impose a sentence on each count, because the 151 month sentence exceeded the maximum sentence for one of the counts. The error, even though never raised by Andrews, (he might have figured there was no point) affected his substantial rights and required correction. The matter was remanded for resentencing.                                                                                                                                                        

Friday, July 06, 2012

Definition of “Sexual Contact” under U.S.S.G. § 2G1.3(b)(4)(A) Does Not Require Contact with Minor Victim

In United States v. Pawlowski, No. 10–4105 (3d Cir., June 19, 2012), the defendant challenged his conviction for attempted enticement of a minor under 18 U.S.C. § 2422(b). The defendant initiated an online communication on the social networking site "My Yearbook" with an individual portrayed as a 15 year old girl named "Ashley". Ashley was in fact a detective from the Allegheny County District Attorney's Office. During their online correspondence, the defendant inquired several times about Ashley's age. Initially, Ashley listed her age as 98, then later responded that she was 15 years old. Ashley also provided pictures of herself, which were in fact pictures of a female police officer during her teenage years. The court ruled that this evidence was sufficient to prove that the defendant believed he was communicating with a minor, as required under § 2422(b).

The Third Circuit also found that the sentencing court properly applied the two-level enhancement under U.S.S.G. § 2G1.3(b)(4)(A) for “sexual contact”. The court reviewed the definitions for the terms “sexual contact” and “sexual act,” as used under the statute and the guideline, to conclude that “sexual contact” does not require contact with the minor victim. Therefore, the defendant’s act of masturbation in front of his webcam during an online conversation with Ashley constituted “sexual contact” under § 2G1.3(b)(4)(A).

The court also rejected the defendant’s challenge to the government’s opening statement, in which the prosecutor informed the jury that defense counsel would “certainly present evidence and explain things.” The defendant argued that this statement improperly referenced his constitutionally-protected decision not to testify. The court, however, ruled that this “brief and isolated” remark did not constitute plain error because any harm inflicted by the remark was diffused by defense counsel’s response during his opening statement, as well as the trial court’s repeated clarification that the government bore the burden of proof.

Mixed Motives Jury Instruction Proper in Prosecution under Fair Housing Act, 42 U.S.C. § 3631

In United States v. Piekarsky, Nos. 11–1567, 11–1568 (3d Cir., June 18, 2012), two of several defendants charged in the brutal beating death of a Latino American, and subsequent cover up, in Shenandoah, Schuylkill County, Pennsylvania, appealed their convictions under the federal Fair Housing Act, 42 U.S.C. § 3631. The statute criminalizes conduct which interferes with, intimidates or injures an individual because of his race or ethnicity and his decision to reside in a certain area. The defendants claimed that the trial court erred by giving the jury a “mixed motives” instruction. The defendants maintained that such an instruction was legally insufficient to support a conviction under § 3631 because it allowed the jury to find them guilty based upon evidence of other motives in addition to racial animus. The Third Circuit cited other circuits to conclude that the statute’s use of the term “because” did not “connote exclusivity or predominance.” Therefore, the defendants’ possession of motives other than racial or ethnic intimidation would not render their conduct any less a violation under the Act. Consequently, the court ruled that the jury instruction for § 3631 was legally sufficient because it allowed the jury to find that the defendants possessed animus toward a protected class, and they had the specific intent to intimidate a member of that protected class from exercising his housing rights under the Fair Housing Act.

The Third Circuit also rejected the defendants’ claims that the evidence was insufficient to support their convictions. The court found that the evidence presented, which showed that the defendants hurled racial epithets immediately prior to, during and subsequent to the beating, evinced their intent to send the message that certain individuals were not welcome to reside in Shenandoah because of their race or ethnicity.

The Third Circuit also rejected the defendants’ argument that their federal prosecution violated the Double Jeopardy Clause, finding that the doctrine of Dual Sovereignty foreclosed the argument. Citing its ruling in United States v. Berry, 164 F.3d 844 (3d Cir. 1999), the court held that the “Bartkus exception” to the Dual Sovereignty rule did not apply because the defendants failed to show that state authorities acted as puppets in conducting a sham prosecution in anticipation of the federal proceedings.